What are the main concerns about Canada’s role in the alleged abuse of Afghan detainees?

At the heart of the issue is whether Canada breached its international obligations to uphold human rights when it transferred Afghanistan detainees to foreign authorities, if officials knew about the risk of physical or psychological abuse and torture. Before 2005, detainees picked up by international forces in Afghanistan were handed over to U.S. authorities. As reports of torture and ill-treatment mounted at Bagram, Guantanamo and elsewhere, Canada and other NATO ally nations struck agreements to transfer prisoners to Afghan government custody.

Canada’s former Chief of Defence Staff, Gen. Rick Hillier, signed an agreement in 2007.

According to Amnesty International Canada, the change was praised by some at the time as recognition of the re-emerging Afghan state institutions. But in reality it meant putting detainees in an already overburdened prisons system reeling after decades of neglect, corruption and systematic human rights violations. The risk of torture remained a concern, especially for detainees transferred to the National Directorate of Security (NDS).

Has anyone taken blame for potential abuse?

“There has to be some forum to determine whether that legal standard was breached… (or) this will disappear into the ether.”
— Errol Mendes, University of Ottawa

The Conservative government and top Canadian Forces officials have firmly and continually maintained they always responded to allegations, but never received a credible, substantiated claim of torture.

What international obligations could have been violated if Canada was complicit in the abuse or torture of Afghan detainees?

If the government of Canada had knowledge of mistreatment, it had a responsibility to act on that knowledge under the Third Geneva Convention. Article 12 states that the detaining power is responsible for the treatment given to prisoners of war. If a country intentionally hands over prisoners to torturers, it could be considered guilty of a war crime.

How did all this come to light?

The first allegations of detainee abuse were leveled in February 2007 by University of Ottawa law professor Amir Attaran, who obtained documents under an access to information request that showed three prisoners in Canadian custody were brought in with similar injuries to the head and upper body on the same day.

In April 2007, the Globe and Mail published stories based on interviews with detainees claiming they were beaten, starved, frozen and choked after they were transferred to Afghanistan’s NDS by Canadian soldiers.

The Conservative government says it is case closed and that there is no evidence Canadian officials did anything wrong. Should we believe that?

Liberal MP Stéphane Dion, who has seen the documents, flags several concerns that are raised by the files, including that Canada had no tracking of detainees prior to 2007 and an incident of a detainee who was transferred to NDS and later subjected to possible abuse.

Errol Mendes, a law and human rights professor at the University of Ottawa, said there appears to be a great disparity between the government’s assurance that there was no wrongdoing and the concerns raised by Dion. He said it’s not enough for Canada to “see no evil, hear no evil” — it has a legal obligation to ensure detainees will not be mistreated after they are transferred to another authority.

“Was there evidence of substantial risk of torture?” he asked. “There has to be some forum — judicial or quasi-judicial — to determine whether that legal standard was breached. This is where the rubber hits the road.”

So, will we ever get to the bottom of this affair?

Foreign Affairs Minister John Baird said after 12 months and $12 million spent, the case is essentially closed. Calls for a judicial inquiry will undoubtedly continue, especially from the NDP as Official Opposition. Mendes predicts the Conservatives will attempt to “deep six” the matter as quickly as possible, and may even try to shut down the special committee studying the issue.

“The government will deny and the opposition will keep demanding more and more evidence… but unless there is a forum to determine that legal standard, this will basically disappear into the ether of political standoffs.”